Newly-Released Documents Show NSA Claiming An Email Address Is A 'Facility,' Skirting Probable Cause Requirements
from the so,-you-know,-more-of-the-same dept
If it's late Friday afternoon and the public's attention is focused elsewhere, it must mean it's time for another document release from James Clapper's office (ODNI). The heavily-redacted documents dumped by the ODNI deal with the precursors to the FISA Amendments Act (FAA): the Terrorist Surveillance Program (TSP) and 2007's interim legislation (Protect America Act or PAA) that bridged the gap between the TSP and the FAA.The most interesting document in the release is an April 3, 2007 order [pdf link] from the FISA court which contains some rare hesitation from a FISA judge (Roger Vinson) as he deals with the NSA's desire to capture communications without providing probable cause support for its actions.
A footnote attached to the first paragraph of the order makes it clear Judge Vinson felt he was drifting into uncharted waters, with much of that being due to the NSA's shifting definitions of surveillance terms in its previous legal arguments.
This order and opinion rests on an assumption, rather than a holding, that the surveillance at issue is 'electronic surveillance' as defined at 50 U.S.C. 1801(f), and that the application is within the jurisdiction of this Court.Vinson's order points out that the NSA attempted to change the rules of its interception program, both in terms of the evidence it provides as well as its desire to collect communications of known US persons.
Until recently, these were the only circumstances in which the government had sought, or this Court had entered, a FISA order authorizing electronic surveillance of the telephone or e-mail communications of suspected international terrorists. However, on December 13, 2006, in Docket No. [redacted], the government filed an application seeking an order that would authorize the electronic surveillance of telephone numbers and e-mail addresses thought to be used by international terrorists without a judge's making the probable cause findings described above, either before the initiation of surveillance of within the 72 hours specified in 1805(f)...The NSA claimed in its support memos that the probable cause finding was preventing the agency from working at maximum efficiency, causing it to fall behind a constantly moving terrorist threat. In addition, its January 2007 requests included one seeking permission to collect communications from known US persons, again without meeting even the lowered bar of probable cause required by the FISA court. While the court did hand down a number of stipulations, it allowed the NSA to use its proposed "emergency FISA application" to skirt probable cause requirements and the 72-hour notice period. It also granted this for rolling 90-day periods, subject to renewal. By doing this, the FISA court turned "emergency" surveillance into the new normal.
Beyond that, the NSA also sought to expand its set of "selectors." Previously, email addresses and phone numbers known to be used by (or about to be used by) members or agents of "foreign powers" or other redacted terrorist organizations were the only ones allowed to be used as selectors when collecting communications. In these applications, the NSA wanted to start contact chaining -- tasking email addresses or phone numbers that referred to previous selectors as new selectors. Judge Vinson's order notes that there's no way the NSA can hope to meet the probable cause requirement by doing this.
The acquisition of e-mail communications because they refer to a selector e-mail address does not appear to have been authorized under FISA prior to Docket [redacted] and is discussed further below.The "further discussion" includes Vinson highlighting this relevant part of the FISA court's probable cause requirements.
(B) each of the facilities or places at which the electronic surveillance is directed is being used, or is about to be used, by a foreign power or an agent of a foreign power.Because the NSA couldn't credibly claim that these new guilty-by-association selectors are being used by the targets it was authorized to collect from, the agency deployed a number of word games. Vinson points out that one memorandum of law defines "facilities" one way (more traditionally as an operations base), while the most recent one defined the word quite differently. (In particular, the NSA maintained that an email address or phone number is a "facility" in and of itself, simply because both "facilitate the transmission of communications." Footnote on page 32.)
Underlying the government's position, therefore, is the premise that 1805(a)(3)(B) can be applied so variously that a FISA judge has great discretion in determining what "facilities" should be the subject of the judge's probable cause analysis.Much of what follows is redacted, especially where further clarification would be extremely useful. Reading between the black blocks, it appears the NSA attempted to argue that the collection of communications was distinct from the term "electronic surveillance," except for the gathering of internet communications, which it claims is synonymous with the statutory definition. After reading through the government's multiple citations (most of which the judge deems irrelevant) in support of its seemingly contrary arguments, Vinson arrives at this conclusion.
Tellingly, none of the cited eases stand for the proposition on which this application rests that electronic surveillance is not 'directed' at particular phone numbers and e-mail addresses.That would be the NSA's argument that a "facility" can be an email address, except for the times when the more traditional definition allows it to cast a wider net. Vinson further points out that accepting the NSA's arguments means discarding the intent of Congress and removing the court's ability to act as a check against executive branch overreach.
However, even if the statutory language were as elastic as the government contends, it would still be incumbent on me to apply the language in the manner that furthers the intent of Congress. In determining what interpretation would best further congressional intent, it is appropriate to consult legislative history. That legislative history makes clear that the purpose of pre-surveillance judicial review is to protect the fourth amendment rights of US persons. Congress intended the pre-surveillance "judicial warrant procedure," and particularly the judge's probable cause findings, to provide an "external check" on executive branch decisions to conduct surveillance.He concludes:
Contrary to this intent of Congress, the probable cause inquiry proposed by the government could not possibly restrain executive branch decisions to direct surveillance at any particular individual, telephone number or e-mail address.
[...]
Thus, under the government's interpretation, the judge's probable cause findings have no bearing on the salient question: whether the communications to be acquired will relate to the targeted foreign powers. As discussed below, the government would have all of the probable cause findings bearing on that question made by executive branch officials, subject to after-the-fact reporting to the Court, through processes characterized by the government as minimization. That result cannot be squared with the statutory purpose of providing a pre-surveillance "external check" on surveillance decisions, or with the expectation of Congress that the role of the FISA judge would be the same as that of judges under existing law enforcement warrant procedures.
I am unable, on the basis of the facts submitted by the applicant, to find probable cause to believe that each of these facilities "is being used, or is about to be used, by a foreign power or an agent of a foreign power." The application contains no facts that would support such a finding.In this, we see the NSA behaving much like its spiritual brethren in law enforcement and investigative agencies -- seeking to route around probable cause requirements under the pretense that bad guys will always be at least one step ahead if the government is forced to follow the rules. Rather than stay within the confines, the NSA plays word games in an effort to bypass governing statutes. The agency has demonstrated repeatedly that it has little desire to work within the framework of the law and has on multiple occasions attempted to short-circuit the system by feeding the court bad information and pursuing elliptical legal arguments. The end result is the current surveillance framework, thanks to the FISA Amendments Act's codifying of the NSA's questionable collections under the Protect America Act.
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Filed Under: 4th amendment, email, james clapper, nsa, odni, probable cause, surveillance
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The NSA is playing word games because they know they'll be allowed to.
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Re:
There's always been a difference between legal definitions and common language. We could argue that the continuing evolution of any industry's jargon is the footprint of progress. It's very hard to fight against. I'll theorize that those who argue semantics are often seen as argumentative rather than willing to make progress.
I'm still explaining to people that the Internet is capitalized.
Language will find a way.
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I think the NSA has caught up.
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Law is about as much about interpretation as the bible/Qu'ran/Talmud/[fill in any sacred book]
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Re:
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Fair and equal application of law.
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Two things
Secondly, with this constant super technology savvy super terrorists that are constantly one step ahead of our highest budgeted super spy intelligence agency, does anybody get the impression that this dog is chasing its own tail? I have a hard time believing that we need to continuously strip away every bit of privacy and freedom and break every bit of technology we have to stay ahead of a bunch of guys in caves. GUYS IN CAVES! How technologically advanced could they possibly be that we're always one step behind them?
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Re: Two things
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This is a surprise?
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NSA's own Double Secret Probation
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Double Secret Interpretation
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Not that any of this really matters any longer.
Not that any of this really matters any longer. Now - thanks to Feinstein's recent, last minute, treacherous, 4th Amendment destroying, amendment (H.R.4681 S.AMDT.3995 Sec. 309) - it's all explicitly "legal".
It seems to me that something as significant as effectively legalizing domestic mass surveillance would warrant a mention on the evening news. Nope, just crickets.
Fascist Power Grab Wipes out 4th Amendment
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Re: Not that any of this really matters any longer.
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Re: Re: Not that any of this really matters any longer.
The dynasties that control the world's wealth and decide what war is, when, where and by whom use these governments like tools in their bags of tricks. These things have to come to pass, but it will not excuse those facilitating this world for their own personal playground using people like bees making them honey!
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Re: Re: Re: Not that any of this really matters any longer.
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even creepier
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Shut it down
When a government agency has shown this much contempt for the law and the rights of the public, it's time to shut it down and start from scratch.
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Shutting down the big agencies
That said, the NSA owns the Senate and the Presidency. You're not going to disband or defund the NSA through them.
But in the meantime, feel free to gather a crowd big enough to simply raze the NSA facilities and lynch its employees. Or feel free to suggest a more creative means to take down the NSA.
Expect the full power of the DoJ and all its guns between you and this noble objective, though. So bring more than pitchforks and torches.
Though a few million people should do it.
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I prefer "shambled"
And we're deep into Tyranny territory now. It'll be a long, improbable hike escaping again.
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The executive branch is breaking the law, or more specifically the NSA is violating constitutional law by not seeking a warrant based on probable cause.
Constitutional law is literally the foundation of our Constitutional Republic. From which all other laws sprout. If Constitutional law no longer holds any authority. Then no other laws inside our Constitutional Republic can derive any authority either.
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The Constitution as our foundation
Law is held by the authority of force, hence the numerous law-enforcement agencies that serve the Department of Justice. The officers within those agencies are the ones who ultimately decide which laws to enforce, or not.
So ultimately the authority rests in the guy with the gun, which is why people get shot for contempt of cop or driving while black, less so for institutionalized violation of human rights on a national scale.
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Lawyers
Isn't this what lawyers do? Is it any surprise to anyone that the government is run by legal eagles? Does anyone doubt the good intentions of people in charge to keep this country safe from all enemies foreign and domestic?
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Re: Lawyers
"Does anyone doubt the good intentions of people in charge to keep this country safe from all enemies foreign and domestic?"
Depends on the people in charge. I completely doubt that the intentions of those in charge of these programs are in line with what you said.
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